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PUNJAB & HARYANA HIGH COURT
D.S.Tewatia and Pritam Singh Pattar JJ.
Ram Sarup S/o Tule Ram Jain Agarwal
Versus
Ram Chander
First Appeal No. 7 of 1962,
Decided On : AUGUST 26, 1975
PUNJAB TENANCY ACT, 1887 - SECTION 55 - PUNJAB ALIENATION OF LAND ACT, 1900 - SECTION 16(1) - PROVINCIAL INSOLVENCY ACT, 1920 - SECTION 60(2) - SALE OF OCCUPANCY RIGHTS BY OFFICIAL RECEIVER - VALIDITY - NOTICE TO LANDLORD - EFFECT OF REPEAL OF PUNJAB ALIENATION OF LAND ACT - RES JUDICATA - EFFECT OF REVENUE COURT'S DECISION - LIMITATION - SUIT FOR POSSESSION - JURISDICTION OF COLLECTOR AND ASSISTANT COLLECTOR - CONSTRUCTIVE RES JUDICATA - WRIT PETITION - DECISION IN PREVIOUS CASE - EFFECT IN SUBSEQUENT WRIT PETITIONS.
Fact of the Case:
Phulu, an occupancy tenant, sold his occupancy rights to his landlord Prabhu Dial during the pendency of insolvency proceedings against him. The Official Receiver sold the occupancy rights to Ram Sarup. Ram Chander, who had purchased the land from Prabhu Dial, filed a suit for declaration that he was the owner of the land. The suit was dismissed by the trial court and the lower appellate court, but was accepted by a Division Bench of the Lahore High Court, which held that the sale by Phulu to Prabhu Dial was ineffective. Ram Chander then filed a suit under Section 60 of the Punjab Tenancy Act to cancel the sale of occupancy rights by the Official Receiver to Ram Sarup, which was dismissed as barred by limitation. Ram Sarup filed a civil suit for possession of the land, which was dismissed by the trial court and the lower appellate court. Ram Sarup filed a second appeal in the Lahore High Court, which was dismissed. Ram Sarup filed a letters patent appeal against this decision, which was accepted by a Division Bench of this Court and the case was sent back to the trial court with the direction that the defendant should be called upon to make his plea regarding the avoidance of the sale clear and definite in his written statement and after that give the plaintiff an opportunity of raising a counter-defence to the defendant's plea, if he wished to do so, by filing a replication and then to return the plaint for presentation to the Collector in accordance with the procedure laid down in proviso 1 to sub-sec. (3) of Sec. 77 of the Punjab Tenancy Act. The plaint was returned to Ram Sarup for presentation to the Collector. Ram Sarup presented the plaint before Mr. Kapur, Sub-Divisional Officer Sonepat, who was Assistant Collector 1st Grade with powers of Collector. However, during the pendency of this case, Mr. Kapur was transferred and he was succeeded by Mr. B.S. Manchanda, who was Assistant Collector 1st Grade, Sonepat. He dismissed the suit of the plaintiff on 24.09.1951, and the copy of that order is Exhibit D-18. It is alleged that Mr. Manchanda had no jurisdiction to hear that case and his judgment is without jurisdiction. In pursuance of this judgment mutation of this land was attested by the revenue authorities in the name of Ram Chander on 30.05.1954. The plaintiff then filed an appeal against the judgment of Shri Manchanda before the Commissioner, which was dismissed. He then filed a revision petition before the Financial Commissioner, which was also dismissed. The present suit was filed by the plaintiff for a declaration that he is owner in possession of the land in suit measuring 1 Kanal 19 Marlas, which is part of Khasra No. 442 min. (whose previous Khasra No. was 1525) and in the alternative it is prayed that if he is not found to be in possession of this land then decree for possession may be passed.
Finding of the Court:
1. The sale of the occupancy rights of Khasra No. 1525 by the Official Receiver in favour of Ram Sarup was voidable at the instance of the landlord under Section 60 of the Punjab Tenancy Act, as no notice was issued to the landlord or Ram Chander under Section 55(2) of the Act. 2. The sale was also voidable in view of the provisions of Section 16(1) of the Punjab Alienation of Land Act, 1900, as Phulu, the occupancy tenant, was a member of a statutory agricultural tribe in Rohtak District. 3. However, the Punjab Alienation of Land Act was repealed with effect from 4.04.1951, and the sale in favour of Ram Sarup was not avoided by Ram Chander landlord till that date. Therefore, in view of the law laid down in Amar Singh Uttam Singh V/s. R.L. Aggarwal, AIR 1960 Punj 312, the sale cannot be attacked by Ram Chander landlord on the ground that it violates the provisions of Section 16(1) of the Punjab Alienation of Land Act. 4. The decision of the Revenue Court dated 24.09.1951, which was maintained by the superior Revenue Courts, that the sale of the occupancy rights of the land in suit by the Official Receiver in favour of Ram Sarup plaintiff-appellant was invalid and was set aside, operates as res judicata in this case. 5. The judgments referred to in para No. 11 of the plaint are perfectly valid and legal and are binding on the plaintiff. 6. The judgments, Exhibits P-4 and P-5, mentioned above do not operate as res judicata.
Issues: 1. Whether the plaintiff is in possession of the land in dispute and thus is the suit in the present form competent? 2. Whether the plaintiff has become the owner of the land in dispute? 3. Whether the suit is within time ? 4. Whether occupancy rights of Phullu deceased were rightly and validly transferred to the plaintiff? 5. Are the judgments referred to in para No. 11 of the plaint without jurisdiction and hence not binding upon the plaintiff ? 6. What is the effect of the judgment of the High Court dated 8.04.1943 and judgment of the Financial Commissioner dated 1.05.1948 ? 7. Whether the sale in dispute is against the provisions of the Punjab Alienation Land Act, if so to what effect? 8. Whether the objection of the plaintiff regarding jurisdiction is barred by resjudicata ?
Ratio Decidendi: 1. The sale of the occupancy rights of Khasra No. 1525 by the Official Receiver in favour of Ram Sarup was voidable at the instance of the landlord under Section 60 of the Punjab Tenancy Act, as no notice was issued to the landlord or Ram Chander under Section 55(2) of the Act. 2. The sale was also voidable in view of the provisions of Section 16(1) of the Punjab Alienation of Land Act, 1900, as Phulu, the occupancy tenant, was a member of a statutory agricultural tribe in Rohtak District. 3. However, the Punjab Alienation of Land Act was repealed with effect from 4.04.1951, and the sale in favour of Ram Sarup was not avoided by Ram Chander landlord till that date. Therefore, in view of the law laid down in Amar Singh Uttam Singh V/s. R.L. Aggarwal, AIR 1960 Punj 312, the sale cannot be attacked by Ram Chander landlord on the ground that it violates the provisions of Section 16(1) of the Punjab Alienation of Land Act. 4. The decision of the Revenue Court dated 24.09.1951, which was maintained by the superior Revenue Courts, that the sale of the occupancy rights of the land in suit by the Official Receiver in favour of Ram Sarup plaintiff-appellant was invalid and was set aside, operates as res judicata in this case. 5. The judgments referred to in para No. 11 of the plaint are perfectly valid and legal and are binding on the plaintiff. 6. The judgments, Exhibits P-4 and P-5, mentioned above do not operate as res judicata.
Final Decision: The appeal is dismissed, but there will be no order as to costs.
PRITAM SINGH PATTAR, J.
1. This is a regular first appeal filed by Ram Sarup, plaintiff, against the judgment and decree dated 6.06.1961, of the Senior Sub-Judge, Rohtak, dismissing his suit for declaration and for possession of the land in dispute measuring 1 Kanal 19 Marlas fully described in the plaint and situated in village Ghanaur, Tehsil Sonepat, District Rohtak, (now District Sonepat).
2. The facts of this case are that one Prabhu Dial was the owner of Khasra No. 1525 measuring 4 Bighas and 1 Biswa Kham situated in village Ghanaur, Tehsil Sonepat District Rohtak, and one Phulu was it occupancy tenant under him. The creditors of Phulu made an application on 12.01.1937, against him in the Insolvency Court to have him adjudicated insolvent. Phulu was served in that insolvency case on February 10, 1937. Phulu sold his occupancy rights in that land to his landlord Prabhu Dial on the basis of sale deed dated 25.02.1937. Prabhu Dial thus became full owner of this land and he sold this land bearing Khasra No. 1525 to Ram Chander, defendant. Phulu was declared insolvent by order dated 11.03.1937 of the Insolvency Court. The whole of the property of Phulu insolvent, including the occupancy rights in Khasra No. 1525, vested in the official Receiver. The occupancy rights of Phulu debtor in Khasra No. 1525 were sold by public auction by the Official Receiver on May 24, 1937, and were purchased by Ram Sarup, plaintiff, and sale deed dated October 5, 1937, was executed in his favour.
3. Ram Chander, defendant, who had obtained possession of Khasra No. 1525 from Prabhu Dayal, filed a suit for declaration that he was owner of Khasra No. 1525 in suit besides same other land (with which we are not concerned in this appeal). This suit was decreed by the trial Court and this decree was upheld by the lower appellate Court and also by a single Bench of the Lahore High Court Ram Sarup then filed Letters Patent Appeal No. 106 of 1941, against the judgment of the Single Bench, and it was accepted by a Division Bench of that Court on April 8, 1943, and the copy of that judgment is Exhibit P-4. The Division Bench held that the sale of the occupancy rights in the land by Phulu in favour of Prabhu Dial landlord from whom Ram Chander, plaintiff, purchased this land, took place during the pendency of the insolvency proceedings, and therefore the sale by Phulu tenant in favour of Prabhu Dial was ineffective. The appeal was accepted and the suit of the plaintiff dismissed regarding the occupancy rights of this land sold to Prabhu Dial on 25.02.1937, by Phulu insolvent.
4. Ram Chander, defendant, thereafter filed a suit on 4.10.1943, u/s. 60 of the Punjab Tenancy Act to cancel the sale of occupancy rights by the Official Receiver in favour of Ram Sarup appellant in a Revenue Court, which was dismissed by the Collector Ist Grade, vide his judgment dated 29.05.1944, on the ground that it was barred by limitation. The appeal filed by Ram Chander was also dismissed by the Collector on 6.07.1945, and a revision filed by him in the Court of the Commissioner of Ambala Division was dismissed on 12.06.1946. Ram Chander further filed a revision petition in the Court of the Financial Commissioner, Punjab, which was dismissed by him on 1.05.1948, and the copy of that judgment is Exhibit P-5.
5. Thereafter, Ram Sarup plaintiff filed a civil suit for possession of this land against Ram Chander on 14.10.1943, on the ground that he is occupancy tenant of this land by virtue of the sale effected in his favour by the Official Receiver and that Ram Chander defendant was in illegal possession. Ram Chander defendant resisted the suit on various grounds. He pleaded that the original occupancy tenant had sold his rights to the landlord and the latter had in his turn sold the entire holding to him, and that the sale of the occupancy rights by the Official Receiver was void. The plaintiff s reply to this objection was that the previous decision between the parties opera
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